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Dáil Éireann debate -
Tuesday, 1 Jul 2003

Vol. 570 No. 2

Leaders' Questions.

The resignation of Mr. Justice Flood from the Flood tribunal has clearly caused confusion among the public and in political circles. It is very important that there be absolute clarity about how we proceed from here and what the current position is. Whatever else about their views on the tribunal, it is clear that the public do not want the taxpayer to have to take up the cost of payment of those who were deemed to have clearly obstructed the findings of the tribunal, whether those costs be €10,000 or €10 million.

Last week we had some very confusing statements from the Taoiseach and members of Government on this matter. On Tuesday the Taoiseach said that if Mr. Justice Flood did not deal with the costs issue, a question clearly arises. Also on Tuesday, the Minister for the Environment, Heritage and Local Government, Deputy Cullen, said that legislation would be required to reduce "as best we can" the risks of legal challenge arising from a new chairman dealing with the costs element. On Wednesday the Taoiseach said that if Mr. Justice Flood did deal with costs, it would avoid legal complications. However, on Friday, following his resignation both as chairman and as a member of the tribunal, the Taoiseach indicated that there are no legal impediments to a new incoming chairman dealing with the issue of costs.

I wish to find out from the Taoiseach what, in his best estimation, the position now is. Is it clearly the case that he has discovered that there is no legal restriction or complication, as distinct from impediment, upon a new chairman dealing with the costs element of this tribunal? Any Member of the House might not have a legal impediment imposed upon him or her in dealing with the costs, but it does not remove the element of legal charge after legal charge arising as a consequence.

If legislation is necessary, and there is no legal impediment involved, why can we not have this legislation this week and allow the work of the tribunal to continue unimpeded?

Matters have changed a bit over the course of the week. Of course, there is no problem with the tribunal continuing its work. The question of costs is the issue which requires legislation, which can be produced in the autumn. In the course of my statement to the Dáil last Tuesday, I made it clear that the preference of the Government was that Mr. Justice Flood would decide the costs issue. We took the view that if Mr. Justice Flood proceeded to deal with other modules and not address the costs issue for the reasons set out in his letter of 16 June, there would be a risk that persons appearing in these modules could rely on this as a potential ground for legal challenges. Deputy Kenny has quoted me correctly. This was a legitimate point that needed to be addressed. It was because of our concern in this regard that we sought further clarification from Mr. Justice Flood on this aspect of his proposal. However, as I shall shortly demonstrate, the original proposal and the clarification sought by the Minister, Deputy Cullen, in connection with it was overtaken by events. I wish to make it clear, as quickly as I can, that the Government had not rejected the proposal in the letter of 16 June but was awaiting clarification. However, the proposal became redundant in the light of what I will now disclose.

On 26 June, a meeting took place between the Attorney General and Mr. Justice Flood. The meeting had been sought by Mr. Justice Flood to clarify his position. He stated that he was personally disposed towards dealing with the issue of costs and to continuing on in the tribunal for a further period. He stated his willingness to address the costs issue, notwithstanding the added strains and burden that would impose. There was also a brief discussion about possible future legislative changes to enable the administrative burden of the tribunal that was placed on the chairperson to be reduced by permitting administrative tasks to be delegated to another member of the tribunal. This was to address one of the reasons that was behind the proposal contained in the letter of 16 June and was a mechanism that would assist his continuation in the tribunal.

It was agreed that Mr. Justice Flood would return to the tribunal offices for the purpose of sending a letter to the Oireachtas on his future role in the tribunal, as discussed with the Attorney General. I was informed by the Attorney General of this new situation. Later that afternoon, the Attorney General received a telephone call from Mr. Justice Flood who was at the tribunal. During that call, the Attorney General was informed by Mr. Justice Flood that he wanted to reconsider his future role in the tribunal having had further discussions. It was agreed that Mr. Justice Flood would further consider his position overnight. I was informed of this change in circumstances by the Attorney General.

Last Friday, 27 June, the Attorney General received a telephone call wherein he was informed by Mr. Justice Flood that he was resigning from the tribunal. A letter was sent to the Oireachtas and copied to the Attorney General. Members of this House have a copy of that letter. There was only one meeting last week between the Attorney General and Mr. Justice Flood.

As is clear from the resignation letter, Mr. Justice Flood's decision to resign completely from the Flood tribunal is one which he made in the interests of the tribunal and its work to date and into the future. I understand and appreciate why Mr. Justice Flood has resigned. I wish to state emphatically that media speculation as to reasons for Mr. Justice Flood's resignation is simply incorrect. Members of the House have received his letter of resignation and we should accept and respect this decision.

The Taoiseach's two minutes has concluded, but if the House is agreeable to allowing him to continue on this occasion, he may do so.

That is agreed.

At the tribunal's request, a meeting was held with the Attorney General, Mr. Justice Flood, His Honour Mr. Justice Mahon and Her Honour Ms Justice Faherty on 26 May. This meeting concerned the issue of His Honour Mr. Justice Mahon deciding costs as a new chairperson and Mr. Justice Flood becoming an ordinary member. The reasons for this proposed change, as stated at the meeting, were the same as those in the letter of 16 June 2003. Some correspondence additional to that already referred to was exchanged between the Attorney General and the tribunal, and I will make this correspondence available to the House.

Was any contact made with Mr. Justice Flood directly or indirectly by the Government or persons on behalf of the Government following his initial meeting with and his final response to the Attorney General to the effect that he was resigning both as a member of the tribunal and as chairman, despite his personal disposition to deal with the element of costs? Now that Mr. Justice Mahon is to be in charge of the tribunal, what basis has the Taoiseach for saying that there is no legal impediment to his dealing with costs in view of the fact that he will have to read 37,000 pages of transcripts and understand the nuances, mood and circumstances of the evidence given to a point where any such decision can withstand legal charge after legal charge that may arise from people whose charges have not yet been determined, outside those who are deemed to have obstructed the tribunal in its work?

Is the Taoiseach happy to put an end to the speculation rampant in the legal profession that a deal was done originally regarding costs relating to Mr. Ray Burke? Is the Taoiseach happy to endorse what Mr. Justice Finnegan has said about this, that no such deal was done and no such deal exists? Is the Taoiseach happy that Mr. Justice Mahon, upon his assumption of the role of chairman, will be entitled and enabled to deal with the issue of costs once and for all because the taxpayer does not want to have to deal with the issue of payment of costs for those who were clearly deemed to have obstructed the process of finding out the truth and obtaining justice in this matter?

On whether anyone from the Government contacted Mr. Justice Flood, the answer to is "no", aside from Mr. Justice Flood contacting the Attorney General on the occasions I outlined.

On the issue of costs, I now have a detailed legal brief from the Attorney General setting out his views on this issue. The Deputy will recall that when I spoke on this issue last Tuesday, I had only received the information a few hours earlier. The Attorney General has now looked at this matter, has taken all aspects into account and is quite satisfied that with the legislative change, this is a creature of statute and what is in statute can be changed. He is quite satisfied, as are, I understand, the members of the tribunal, that this can be dealt with once the legislation is passed. Of course, the tribunal can continue with its other work.

Mr. Justice Flood and Mr. Justice Finnegan have said previously that there was no question of any kind of a deal having been done. Deputy Kenny did not raise the following issue but other people have and I, therefore, wish to read into the record a letter I received today from Mr. Justice Flood dated 30 June. It states:

Dear Taoiseach,

I refer to my correspondence with the Attorney General and Minister Cullen on the above matter in which the reasons underlining my resignation are set out.

I note in the public press statements to the effect that action-inaction by the Government in relation to requests from the tribunal for additional judges or other matters have caused frustration and are the real reason for my resignation.

I wish to state categorically that this is not so. My decision is in no way related to or consequent upon any action or inaction by the Government of any kind.

My relationship with the Government is through the Department of the Attorney General. I have at all times during my tenure of office had a relationship with the Attorney General's Office that has been exceptionally cordial and co-operative. The allegation that the work of the tribunal has been delayed or frustrated in any way by the Government is completely groundless and has nothing to do with my decision to resign.

The reasons for my resignation are solely set out in my correspondence with the Attorney General and Minister Cullen. I trust this letter clarifies the position.

Yours sincerely,

Feargus M. Flood.

Can I clarify with the Taoiseach why an issue which seemed very problematic on 24 June is kosher today according to the Attorney General? We know that the Attorney General received the letter on 16 June, even though it was not open to this House until 24 June, so he had plenty of time to consider his opinion. The Taoiseach has now told us that the Attorney General met Mr. Justice Mahon and Ms Justice Faherty on 26 May to discuss what would happen in the matter of costs if Mr. Justice Flood resigned. If the Attorney General was seized of the matter on 26 May, surely he had a clear opinion by the time he went to Cabinet last week in terms of whether the taxpayer is likely to be exposed to horrific costs for people considered to have obstructed the tribunal or that the taxpayer should be responsible for the costs of big time tax evaders. It is an appalling vista. I am sure the Taoiseach agrees with me that if the taxpayer ends up paying €10.5 million fees down the road for Ray Burke, there will be outrage in this country. I am still not clear how the Taoiseach was satisfied that this matter could be handled safely by another judge, as was evident from reports over the weekend. Last Tuesday, when answering questions on this matter, he cast as many doubts over this possibility as did Deputy Kenny and I. What exactly has changed in the interim?

Given the changes that the Taoiseach made to the Freedom of Information Act, we will not see the correspondence that was transferred between Government and the Flood tribunal, if there was such correspondence. He has since imposed a regime of charges that means that the ordinary citizen will now be liable for up to €240 if he or she wishes to obtain information. I am not clear why the Government is so intent on undermining the independence of the Freedom of Information Act by way of the further actions the Taoiseach took yesterday.

Unfortunately, Deputy Rabbitte did not listen to much that I said – I said that I would make available the correspondence that was transferred. We can do so if we deem the correspondence as administrative.

Last week I came into the House immediately as I believed that was a good thing to do. A Cheann Comhairle, you allowed me to give a detailed account to the House on Question Time and to outline the preliminary views of the Cabinet. Deputy Rabbitte purposely sought to admit that the Attorney General was in the Hague during the week when Mr. Justice Flood's letter was received – I explained to the House that he had returned. The issue of concern was whether difficulties in respect of costs and the heightened possibility of legal challenges would arise if Mr. Justice Flood were not the sole member of the tribunal. The view of the Attorney General was that it possibly would heighten the danger of somebody taking action. That there is a different judge in his place still does not stop someone taking action, but the view of the Attorney General, who has had an opportunity to reflect on the matter and discuss it, is that this fear would be removed by amending the statute, given that the problem is a creature of statute in the first instance. Of course, this does not concern the issue of fees. The House should be very clear that the Attorney General and I have no say regarding what the tribunal decides in respect of fees. That issue is unaffected by these events and it is a matter solely for Judge Mahon and his legal colleagues—

Is the Taoiseach referring to fees or costs?

Costs. I thank the Deputy – he is correct. Costs are a matter for the tribunal. In the autumn we will change the legislation, and our legal advice is that it is in order to do so. There are a number of reasons for this. Party leaders wanted me to outline them but I would rather not do so because it would only make it easier for others if they wanted to take action. The legal advisers are quite happy that their advice on this issue stands up.

The work of the tribunal will continue and in the autumn we will have to give thought to the manner in which we change the legislation. We will change the regulations on Thursday to allow Judge Mahon and his colleague, Judge Keys – the third judge – to come in. The tribunal does not require a fourth judge at this stage. In the autumn we will pass legislation on fees and the tribunal will continue to deal with this issue.

I am still not clear whether the Attorney General was in the Hague. If he discussed the matter with Judge Mahon and Judge Faherty on 26 May to ascertain what would happen regarding costs if Mr. Justice Flood resigned, surely the Attorney General had a fixed view on the matter before the Taoiseach discussed it with the House last Tuesday and after the Cabinet meeting. Surely the Attorney General had made up his mind rather than allowing the Taoiseach to cast doubt on possible infirmity arising from decisions on costs being made by the judge replacing Mr. Justice Flood. The Taoiseach was very clear and said the Government would prefer if Mr. Justice Flood dealt with the issue of costs, yet the letter dispatched on that day in the name of the Minister for the Environment, Heritage and Local Government, Deputy Cullen, made no attempt to persuade Mr. Justice Flood to stay on to decide costs. In fact, it is clear that the letter accepts that Mr. Justice Flood will not deal with costs and, therefore, I am still not clear about this matter.

On the basis of the motion on Thursday, has any consideration been given to requiring or permitting the three judges to sit in parallel? The Taoiseach has said, and I ask him to put it on the record of the House, that he regards Gilmartin and Dunlop as one module. Most commentators believe there are many years left in that regard. Why cannot the three judges sit in parallel if we are refurbishing the law to deal with this matter and speed it to conclusion?

On the last question, the module is classified as "A5"– we should be clear that this is the one we are talking about. In the reply to the Minister, Deputy Cullen, last week, the tribunal said it hoped to conclude the module by 31 December 2006, after which the other 14 will be dealt with. That is a matter which can be looked at. As I stated last week, the preferred position of the Government is that Mr. Justice Flood deal with the issue of costs. That remains the case. Mr. Justice Flood recognised this position. There is no doubt that his staying on in a different position would have increased the risks, concern and the possibility of legal action. However, this did not arise because it was overtaken by events. Mr. Justice Flood has resigned and I thank him for almost six years of work. The position has changed and our legal team has examined the implications of this carefully and believes that changing the law will remove that doubt. It does not mean that somebody will not make a legal challenge but the legal team has grounds for believing that this will be the position because time has past and there have been no appeals in the past. I will place the other correspondence in the public domain.

When the Parliament goes into recess it will not reassemble until mid-autumn. It is appropriate, therefore, to ask the Government to answer questions on some major unresolved issues. One of the international issues to which much time was devoted in the Dáil and the international arena was the invasion of Iraq by imperial powers. Almost four months after the invasion and the dispersal of the Iraqi army, and in spite of the many regime leaders and scientists available to the occupying powers, not a shred of evidence has been found of the weaponry that was allegedly regarded as an immediate and mortal threat to western countries and which was believed to be capable of being mobilised in 45 minutes. Does the Taoiseach accept, on reflection, that the claims put abroad by the Bush and Blair regimes about these weapons were fabrications, that the invasion was predicated on a cynical and calculated lie and that the agenda was, after all, the control of oil reserves and the domination of the Middle East? Does he accept in particular that he was implicated in this dishonesty and that he, Deputy Harney and the Minister for Foreign Affairs owe an explanation to the Dáil, before it rises, and to the people for having repeated in the House time and again, as good coin and as fact, claims that are now clearly hollow and unsubstantiated? Does he believe that he should answer to the people why he assisted 40,000 armed US soldiers to invade Iraq on foot of what was clearly a lie?

I ask the Deputy to withdraw the word "lie".

The lie was perpetrated by forces outside the Dáil by the American administration.

The word "lie" is not acceptable in this Chamber.

It is acceptable. It is accepted on the record of the House. That is something the Ceann Comhairle has made up. The Deputy should stick to his guns.

The chair has ruled. I ask Deputy Higgins to withdraw the remark.

The standing order refers to allegations that a Member of this Parliament is lying. I am referring to agencies outside the Dáil.

It is unparliamentary.

It is not unparliamentary. A lie is a lie.

The Deputy cannot challenge the ruling of the Chair in this matter.

It is a fact. I ask the Taoiseach not to insult the intelligence of our people by referring to the thousands of innocent Iraqis who were slaughtered by the regime of Saddam Hussein while the Fianna Fáil party and the Government of which they were members did business with that regime. Dictatorship is a reason for a people's insurrection, a people's revolution, but under international law is not a basis for imperialist invasion. I ask the Taoiseach to direct his answer to the point that this Dáil was misled by the Government.

The Deputy will recall that both during the periods when Ireland was a member of the UN Security Council and when it was not, we continued to give total support to the efforts of the Council to bring a resolution to this major international dilemma that faced us from September 2002 right through to the Spring.

I am grateful to the Minister for Foreign Affairs, Deputy Cowen, and to all those who worked hard to try to solve the problems. I found myself in a unique position in which I was able to relay the sentiments of the Security Council directly to President Bush, and to the British Prime Minister, Mr. Blair, in Hillsborough. I was glad to be able to do that. We stuck firmly with the UN position, and I am proud and glad we did so. On what was said about weapons of mass destruction, I had no information then that was not in the public domain, and everybody else in this House had the same information. I continually stated that I would not prevent the American administration from using Shannon for fly-over purposes. That was totally compatible with our position and I still believe that.

Nelson Mandela did not agree. He disagreed.

I am glad that after all these months a corrupt and vicious regime that killed thousands of Kurds with chemical weapons, and killed thousands of its prisoners, the full numbers of which have yet to be made public, is no longer in existence.

That was when you were selling beef to the Iraqis.

The Taoiseach repeated the claims of the US administration as good coin. The Taoiseach and the Government stated that this justified the actions that were taking place. The Taoiseach assisted them, and he now refuses to answer to the Irish people regarding the true situation.

I call on the Taoiseach again to explain why he misled Parliament and misled the people. There are Parliamentary inquiries into this issue in Britain and in the United States. I ask the Taoiseach to agree that the Dáil Committee on Foreign Affairs should thoroughly investigate this issue, the use of Shannon by the US military and the claims made by the Taoiseach and the Government. Would the Taoiseach be prepared to go before the committee to offer an explanation? Will he see that the advice of the Attorney General regarding the legality of the Iraqi war will be published in full and put before the Dáil and the Committee on Foreign Affairs? Does the Taoiseach agree that we have an on going disaster for the Iraqi people, the oldest civilisation on earth, now with a pulverised water and electricity system, the occupation forces facing a protracted and intensified insurgency and increased instability in the middle east and it was disastrous from start to finish?

A number of Irish citizens who felt so strongly about the slaughter in Iraq and the fact that the Irish Government was partly responsible took direct action against US planes. I ask the Taoiseach to request, on reflection, that the charges against them be thrown out, so that we can have a debate on the real issues and allow the Taoiseach himself to answer to Parliament.

I am glad to see that there is now UN involvement in Iraq. Clearly, a difficult position still has to be resolved there. I hope the presence of UN personnel there will be of assistance not only in a humanitarian way but will help resolve the ongoing difficulties. I still hold firmly to the view that the Irish Government took the correct action. We did not participate in the war. We allowed Shannon to be used, and that was not participation. That was the advice and I stick by that advice.

Even though it may take time for them to enjoy a more peaceful life, my main hope is that the people of Iraq following the removal of the dictatorship within which they had to live for the past 20 years will now be able to move on to have a more peaceful life.

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